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Monday, December 19, 2016

KARMA DORJEE & ORS Vs. U.O.I & ORS

REPORTABLE

IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION

WRIT PETITION (CIVIL) No.103 OF 2014

KARMA DORJEE & ORS .....PETITIONERS

Versus

UNION OF INDIA AND ORS .....RESPONDENTS

WITH

WRIT PETITION (CIVIL) No.111 OF 2014

J U D G M E N T

Dr D Y CHANDRACHUD, J

The petitioners are advocates and have initiated these proceedings
under Article 32 of the Constitution, in public interest for guidelines to
be set down to curb acts of discrimination against persons from the north-
eastern states. The petitioners speak of the paradox of secular India
where on the one hand, students from the north-eastern states who move to
other parts of the country in search of employment and education, learn in
the process the culture and traditions of the rest of the country while on
the other hand, there is an absence of reciprocating sensitivity towards
and awareness of their concerns. They have drawn attention to the
discrimination prevalent in society against citizens of the nation drawn
from the north-eastern states. Such acts of discrimination violate the
fundamental duty under Article 51A(e) which is :

“to promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or
sectional diversities; to renounce practices derogatory to the dignity of
women”.

In order to support the plea with factual details the petitioners have
adverted to instances which were reported in the print media since 2009.
On 26 October 2009, a single woman is alleged to have been burnt to death
in the kitchen of her home by a stalker whose unwelcome advances she had
rebuffed. On 17 April 2012, a young student from Manipur is alleged to
have died after being assaulted in a hostel. In August 2012, panic is
alleged to have been created amongst a community of persons residing in
Karnataka as a result of the circulation of hostile messages on social
media. On 29 May 2013, a young Manipuri girl is alleged to have been
murdered in a rented apartment in the national capital. On 25 January
2014, two young women from the north-east were subject to racial taunts and
molestation and soon thereafter on 29 January 2014, a young student was
racially ridiculed and assaulted to death in the Lajpat Nagar area of New
Delhi. These instances have been alluded to not with a view to seeking the
intervention of the court in specific cases (the law has been set into
motion to deal with such instances of hate crime) but to establish the need
for the issuance of guidelines which will bring about a systemic approach
to addressing the problem.

2 The relief which the petitioners seek is a mandamus directing :

The Union Government as well as the States to formulate a mechanism to deal
with racial atrocities;

Directing the Government of Delhi to constitute a special investigation
team headed by a former judge of this Court to investigate into atrocities
committed in specific instances;

Directing the Union and the States to frame a proper mechanism to deal with
cases of racial intolerance and discrimination; and

To all authorities to undertake programmes for inculcating awareness and
to sensitise both the public and the law enforcing machinery.

3 Article 15 of the Constitution prohibits discrimination on grounds of
religion, race, caste, sex or place of birth. The International Convention
on the Elimination of All Forms of Racial Discrimination (CERD) was adopted
by the United Nations General Assembly on 21 December 1965. India ratified
the Convention in 1968. The Convention has come into force on 4 January
1969. Article 2 of the Convention imposes the following obligation on the
States Parties :

“Article 2

States Parties condemn racial discrimination and undertake to pursue by all
appropriate means and without delay a policy of eliminating racial
discrimination in all its forms and promoting understanding among all
races, and, to this end: (a) Each State Party undertakes to engage in no
act or practice of racial discrimination against persons, groups of persons
or institutions and to ensure that all public authorities and public
institutions, national and local, shall act in conformity with this
obligation;

(b) Each State Party undertakes not to sponsor, defend or support racial
discrimination by any persons or organizations;

(c) Each State Party shall take effective measures to review governmental,
national and local policies, and to amend, rescind or nullify any laws and
regulations which have the effect of creating or perpetuating racial
discrimination wherever it exists;

(d) Each State Party shall prohibit and bring to an end, by all
appropriate means, including legislation as required by circumstances,
racial discrimination by any persons, group or organization;

(e) Each State Party undertakes to encourage, where appropriate,
integrationist multiracial organizations and movements and other means of
eliminating barriers between races, and to discourage anything which tends
to strengthen racial division”.

Under Article 5 all states parties have undertaken to prohibit and
eliminate racial discrimination in all its forms notably, in the enjoyment
of the following rights (amongst others) :

Equal treatment in the administration of justice;

Right to security of person;

Political rights including participation in elections;

Civil rights;

Right to freedom of movement and residence;

Right to freedom of thought, conscience and religion and to express one’s
opinion;

Economic, social and cultural rights;

Right to work and to free choice of employment; and

Right of housing, public health, medical care, social security, education
and training and access to any public place.

India being a signatory to the Convention is duty bound to enforce its
obligations under the law. The provisions of the Convention are of
significance while construing the nature and ambit of the constitutional
guarantee contained in Article 15 of the Constitution. India’s obligations
under an international convention designed to protect fundamental human
rights must be read into the constitutional guarantee against racial
discrimination. A consensus in the international community of nations, in
which India is a vibrant participant, must infuse the content of our own
constitutional guarantees. As this Court held in Vishaka v. State of
Rajasthan[1] :

“...The international conventions and norms are to be read into them
in the absence of enacted domestic law occupying the field when there is no
inconsistency between them. It is now an accepted rule of judicial
construction that regard must be had to international conventions and norms
for construing domestic law when there is no inconsistency between them and
there is a void in the domestic law”. [id at page 251]

The provisions of domestic legislation in India in fact buttress and
support the obligations which have been assumed by the country under CERD.
The Protection of Human Rights Act, 1993 defines the expression
“International Covenants” thus :

“1[(f) “International Covenants” means the International covenant on Civil
and Political Rights and the International Covenant on Economic, Social and
Cultural Rights adopted by the General Assembly of the United Nations on
the 16th December, 1966 and such other Covenant or Convention adopted by
the General Assembly of the United Nations as the Central Government may,
by notification, specify;]”

The Union Government has issued a standing order dated 21 September
2010[3], specifying CERD "as an international covenant in its application
to the protection of human rights in India".

4 In order to deal with the concerns of persons hailing from the north-
eastern states and residing in different parts of the country, particularly
in the metropolitan cities, the Union Government constituted a Committee on
5 February 2014. The Committee was chaired by Shri M P Bezbaruah, a member
of the North-eastern Council. After consulting various stake holders, the
Committee submitted its report to the Union Ministry of Home Affairs on 11
July 2014. The Committee categorised its recommendations into three
categories :

immediate measures which need to be implemented within six

months to one year;

short term measures which need to be implemented within a

period of one to one and a half years; and

long term measures which need to be implemented within a

period of one and a half to two years.

The Union Government has stated in its counter affidavit dated 15 October
2015 filed in these proceedings that the recommendations made by the
Committee with regard to immediate measures have been accepted and action
has been taken to implement the recommendations so as to address the
concerns of citizens from the north-eastern states residing in New Delhi
and in other parts of the country. The recommendations of the Bezbaruah
Committee on immediate measures traverse the following areas :

legal measures, including either a new statutory provision or an amendment
of existing law;

facilities for legal assistance;

strengthening of law enforcement agencies;

special police initiatives including proactive regional action;

utilising the bonding power of sports;

educating the people about the north-east;

greater focus on the north-east in the Information and Broadcasting media;

appointment of nodal officers by each state government ; and

Accommodation related issues including problems of rent.

Implementation of the recommendations has been suggested by the report of
the Committee as follows:

“11.12 Implementation

11.12.1 An effective monitoring mechanism therefore should be built
into the system. We recommend that a high level committee should be set up
under the Home Ministry with representatives of Ministry of DoNER, Ministry
of Home Affairs, Resident Commissioners, Delhi Police and suitable
representation from the Civil Society Organizations working for the
concerns of the North East people.

11.12.2 The Committee should have powers to ensure implementation and
the powers and functions should be clearly laid down. The powers given to
the Committee should also enable it to fix accountability and the concerned
Ministries should act upon the decisions of the Committee within a
specified time. The committee should meet at least once a quarter and
review the implementation of the many initiatives.

11.12.3 The nodal officer from police proposed to be placed in the MHA
should be the convener and the member secretary of the committee.

11.12.4 The results of review by the committee should be uploaded in
the network of North East Police Cell and later on should be linked to be
North East network recommended by us”.

An effective monitoring mechanism has been suggested by the Bezbaruah
Committee. This should commend itself once the Union government has
accepted the recommendations on immediate measures. The Bezbaruah Committee
report should not like innumerable instances of its ilk, languish in dusty
shelves of long forgotten archives. The acceptance by the Union government
is a statement of what it calls a “zero tolerance” policy towards
discrimination against Indian citizens hailing from the north-east. The
court as a protector of human rights is within jurisdiction in ensuring
that this assurance translates into reality.

5 The Union Ministry of Home Affairs has stated before the Court both
in its initial counter as well as in an additional affidavit filed on 20
September 2016 that a proposal for amending the Indian Penal Code by the
insertion of two new provisions - Section 153C and Section 509A - is under
examination. These amendments will deal with offences involving racial
matters. Sections 153A, 153B and 505(2) which already exist as a part of
the Indian Penal Code provide as follows :

“153A Promoting enmity between different groups on ground of religion,
race, place of birth, residence, language, etc., and doing acts prejudicial
to maintenance of harmony.--(1) Whoever-

(a) by words, either spoken or written, or by signs or by visible
representations or otherwise, promotes or attempts to promote, on grounds
of religion, race, place of birth, residence, language, caste or community
or any other ground whatsoever, disharmony or feelings of enmity, hatred or
ill-will between different religious, racial, language or regional groups
or castes or communities, or

(b) commits any act which is prejudicial to the maintenance of harmony
between different religious, racial, language or regional groups or castes
or communities, and which disturbs or is likely to disturb the public
tranquillity,

(c) organizes any exercise, movement, drill or other similar activity
intending that the participants in such activity shall use or be trained to
use criminal force or violence or knowing it to be likely that the
participants in such activity will use or be trained to use criminal force
or violence, or participates in such activity intending to use or be
trained to use criminal force or violence or knowing it to be likely that
the participants in such activity will use or be trained to use criminal
force or violence, against any religious, racial, language or regional
group or caste or community and such activity for any reason whatsoever
causes or is likely to cause fear or alarm or a feeling of insecurity
amongst members of such religious, racial, language or regional group or
caste or community, shall be punished with imprisonment which may extend to
three years, or with fine, or with both.

Offence committed in place of worship, etc.-(2)Whoever commits an offence
specified in sub-section (1) in any place of worship or in any assembly
engaged in the performance of religious worship or religious ceremonies,
shall be punished with imprisonment which may extend to five years and
shall also be liable to fine.]

153B.

Imputations, assertions prejudicial to national integration.

(1) Whoever, by words either spoken or written or by signs or by visible
representations or otherwise,-

(a) makes or publishes any imputation that any class of persons cannot, by
reason of their being members of any religious, racial, language or
regional group or caste or community, bear true faith and allegiance to the
Constitution of India as by law established or uphold the sovereignty and
integrity of India, or

(b) asserts, counsels, advises, propagates or publishes that any class of
persons by reason of their being members of any religious, racial, language
or regional group or caste or community be denied, or deprived of their
rights as citizens of India, or

(c) makes or publishes any assertion, counsel, plea or appeal
concerning the obligation of any class of persons, by reason of their being
members of any religious, racial, language or regional group or caste or
community, and such assertion, counsel, plea or appeal causes or is likely
to cause disharmony or feelings of enmity or hatred or ill-will between
such members and other persons, shall be punished with imprisonment which
may extend to three years, or with fine, or with both.

(2) Whoever commits an offence specified in sub-section (1), in any place
of worship or in any assembly engaged in the performance of religious
worship or religious ceremonies, shall be punished with imprisonment which
may extend to five years and shall also be liable to fine.

505. Statements conducing public mischief. (2) Statements creating or
promoting enmity, hatred or ill-will between classes.--Whoever makes,
publishes or circulates any statement or report containing rumour or
alarming news with intent to create or promote, or which is likely to
create or promote, on grounds of religion, race, place of birth, residence,
language, caste or community or any other ground whatsoever, feelings of
enmity, hatred or ill-will between different religious, racial, language or
regional groups or castes or communities, shall be punished with
imprisonment which may extend to three years, or with fine, or with both.”

Since the subject falls in the Concurrent List of the Seventh Schedule to
the Constitution wide consultations with the state governments are being
undertaken before bringing out any amendments to the law. Whether the law
should be amended is for the Union government to decide in its considered
assessment of the situation, the nature of the problem and the efficacy of
existing provisions. A mandamus to legislate cannot be issued.

6 The implementation of the recommendations of the Bezbaruah Committee
is being monitored by the Union Ministry of Home Affairs and the last
review meeting was held on 12 May 2016. The Court has been apprised of the
fact that the Union Ministry of Home Affairs has issued several advisories
to the state governments. These advisories include advisories dated 10/14
May 2012, 3 June 2013, 5 February 2014, 6 February 2014, 12 October 2015
and 23 May 2016. These advisories relate to various aspects and are
intended to deal with discrimination and racial profiling faced by Indian
citizens hailing from north-eastern states. The advisories, inter alia,
deal with compulsory registration of First Information Reports under
Section 154 of the Cr.P.C. when the information makes out a cognizable
offence and in regard to the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Amendment Act, 2015.

7 The Union Government has in its counter affidavit also indicated the
steps which have been taken by the Delhi Police to inculcate a sense of
security amongst persons from the north-east. During the course of the
hearing on 17 October 2016 this Court was of the view that the Ministry of
Home Affairs may initially monitor the steps being taken particularly by
the Delhi Police so that the model can be replicated in other parts of the
country. In pursuance of these observations, a further affidavit has been
filed on 26 October 2016 on behalf of the Union Ministry of Home Affairs
stating that an officer of the rank of Additional Commissioner of Police
hailing from the north-east has been designated to be in-charge of a
special police unit from the north-eastern region. Similarly, an officer
of the rank of Joint Commissioner of Police/IGP has been appointed as nodal
officer for dealing with issues pertaining to the north-eastern states.
Separate district Additional Commissioners of Police and DCPs have been
appointed as nodal officers to regularly interact with citizens from the
north-east residing in their districts. Steps have been taken for
sensitising the police force and special recruitment drives have been
undertaken for appointment of citizens from the north-eastern states.
Moreover, for Delhi a police officer of the rank of Special Commissioner
will supervise the functioning of the Delhi Police as regards problems
faced by the people of the north-eastern region. A special helpline (1093)
has been introduced on 14 February 2014. A Facebook page – “Delhi Police
for North-east Folks” was launched on 9 May 2014 and till 15 October 2016,
was visited by over 1.50 crore people. A data bank on crimes has been
unveiled in February 2014. Representatives have been appointed from
students and volunteers. Such a mechanism shall be monitored by the
Ministry of Home Affairs and based on the experience gained, it will be
replicated in other metropolitan cities.

8 The monitoring of instances of racial discrimination involving
citizens from the north-eastern states involves among other things issues
pertaining to law enforcement. However, the involvement of the law
enforcement machinery is alone not sufficient to resolve the problem. Mind-
sets have to be changed including in the universities, colleges and
educational institutions, places of work and in society. Sensitivity and
inclusion have to be fostered. In order to achieve this, greater awareness
of the history and the rich cultural traditions of the north-east is
required to be inculcated. The problems faced by persons from the north-
east traverse a whole range of issues, from the mundane issues of daily
life to matters of education, employment, social security and the
fundamental right to live in dignity. The Governments, both at the centre
and the states have a non-negotiable obligation to take positive steps to
give effect to India's commitment to racial equality. This commitment is
embodied in constitutional rights, fundamental duties, statutory provisions
and in the international obligations which have been assumed by India.

9 We are of the view that in order to enhance a sense of security and
inclusion, the Union Government in the Ministry of Home Affairs should take
proactive steps to monitor the redressal of issues pertaining to racial
discrimination faced by citizens of the nation drawn from the north-east.
For that purpose, a regular exercise of monitoring and redressal should be
carried out by a Committee consisting of the following members :

1 Joint Secretary (North-east), Ministry of Home Affairs; and

2 Two other members to be nominated by the Union

Government (one of whom should be a public figure).

The work of the Committee should be widely publicised in the electronic and
print media, including in the north eastern states. The Committee should
be accessible to grievances, suggestions and complaints.

The Committee should meet periodically and preferably at monthly intervals
to monitor the redressal of all such grievances including the
implementation of the recommendations of the Bezbaruah Committee, to the
extent to which they have been accepted by the Union Government. The
Committee shall carry out the following functions :

d) to receive, consider and entertain complaints from individuals and
groups of individuals who claim to be victims of racial abuse/racial
atrocities/racial violence/racial discrimination and forward the same to
the National Human Rights Commission and/or the State Human Rights
Commissions and/or to the jurisdictional Police Station as the case may be
for enquiry and necessary action;

e) to issue necessary directions including calling for reports on
incidents of racial discrimination/racial atrocities/racial violence from
the State Governments/Union Territories.

A decision may also be taken by the Union government on whether any of the
other recommendations should be accepted.